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Tuesday, May 18, 2010

Government Power Expands With Comstock Case

The Supreme Court issued a decision in the case of United States v. Comstock, relying on the "necessary and proper" clause of the Constitution (Art. I, Section 8, clause 18) to uphold a federal statute previously struck down by a district court (and upheld on appeal) which provided for the civil commitment of "dangerous" federal prisoners after their prison sentence had been served and when the state(s) which would have jurisdiction had not provided for the commitment of supervision of the prisoners.  The Supreme Court case really turns on the interpretation of that clause, and the decision (7-2 vote, Scalia and Thomas dissenting) may help expand the lawmaking power of Congress by widening the scope of what is considered a proper federal law.   The "states' rights" crowd should be as displeased with this decision as the fact that some of the "conservative" judges went along with it.
The underlying case involves the thorny issue of "thought crime" or one's predisposition, based on prior behavior or criminal acts, to repeat them -- what in legal jargon is called recidivism.   The practice of continuing one's confinement after they have served their sentence is troubling at a basic level, as it effectively imposes a discretionary, open-ended and possibly never-ending sentence upon some sex offenders.   While their prior crimes are undoubtedly severe, the inconsistent treatment we use for other unquestionably dangerous criminals -- like murderers -- who do their time and then go free without any confinement risk or psychological clearance as a precondition to release, calls into question the practice of post-sentence civil confinement -- indefinite detention by any other name.
The danger here is one of the risk of this expansion of federal power to unjustly confine (imprison) former prisoners who are deemed "dangerous."  I still boil this down to the essential element that we are being asked to trust the discretion, judgment and honesty of the federal officials who are making this assessment.   In other words, freedom is dependent on the character and benevolence of a government official -- in which case it really isn't freedom.   The power and ability (if not the inclination) of government officials to make incorrect judgments about former prisoners involves risks of error, confusion, honest mistake and outright malfeasance.   It should seem that our freedom should never be dependent on trusting others whose hands are on the levers of power.

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